Common use of Surety Instruments Clause in Contracts

Surety Instruments. On or after the Distribution Date, if any letters of credit, financial or surety bonds issued by third parties or other similar financial instruments issued by third parties (collectively, “Surety Instruments”) for the account of MII or any of its Subsidiaries issued on behalf of or for the benefit of the B&W Business are outstanding, B&W shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to replace such Surety Instruments as promptly as practicable with Surety Instruments that (x) are issued for B&W’s own account or the account of any of its Subsidiaries (or any combination thereof), (y) are acceptable to the beneficiary or beneficiaries thereof and (z) neither impose any Liabilities, directly or indirectly, on MII or any of its Subsidiaries nor encumber or otherwise restrict, directly or indirectly, any Assets of MII or any of its Subsidiaries. Notwithstanding the provisions of the immediately preceding sentence, if, after using commercially reasonable efforts, B&W and its Subsidiaries are unable to obtain access to a third-party surety arrangement immediately after the Distribution Time, then MII shall use commercially reasonable efforts to permit B&W and its Subsidiaries to maintain access to the existing surety arrangements to which MII is a party and pursuant to which Surety Instruments for the benefit of the B&W Business are outstanding as of the Distribution Time, for a period of time that does not extend beyond 720 days following the Distribution Date, to the extent permitted pursuant to MII’s credit facilities, as the same may hereafter be amended or replaced; provided, however, that (for so long as MII may have any obligation under or in respect of any additional Surety Instruments that may be issued in accordance with this sentence pursuant to the existing surety arrangements described in the foregoing provisions of this sentence, as they may hereafter be amended or otherwise modified from time to time) in no event shall (i) B&W and its Subsidiaries utilize pursuant to this sentence, at any point in time, aggregate bonding capacity under such existing surety arrangements in excess of $200 million (with any Surety Instruments outstanding as of the Distribution Date not being taken into account to determine if this limit has been reached), and (ii) any Surety Instrument issued pursuant to this sentence have a term that exceeds five years; provided, further, that (i) the ability of B&W and its Subsidiaries to access such existing surety arrangements shall terminate immediately upon B&W ceasing to maintain a corporate rating of BB- or higher by S&P (or its equivalent under any successor rating categories of S&P) and Ba3 or higher by Xxxxx’x (or its equivalent under any successor rating categories of Xxxxx’x) and (ii) neither B&W nor any of its Subsidiaries shall access any such existing surety arrangements during any period following B&W’s receipt of notice from, or a public announcement by, either S&P or Xxxxx’x that such rating agency is considering a possible ratings change below the level specified in the immediately preceding clause (i) unless and until such rating agency has advised B&W in writing that such ratings agency is no longer considering such a ratings change. From and after the Distribution Time: B&W shall (i) directly pay to the Person issuing any Surety Instrument pursuant to the immediately preceding sentence any surety fees or other fees or costs charged with respect to such Surety Instruments; (ii) promptly pay to MII upon written request amounts equal to any out-of-pocket or other expenses incurred by MII or any of its Subsidiaries (including any expenses recorded pursuant to the provisions of the Financial Accounting Standards Board’s Interpretation No. 45, Guarantor’s Accounting and Disclosure Requirements for Guarantees) arising from or relating to any Surety Instruments described in the second sentence of this Section 6.7 or any actions taken by MII in accordance with the provisions of this Section 6.7; and (iii) indemnify and hold harmless MII and each of its Subsidiaries from and against any other Losses arising from or relating to any Surety Instruments described in the foregoing provisions of this Section 6.7, as set forth in Section 3.3. B&W shall not, and shall not permit any of its Subsidiaries to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, Contract or other obligation in connection with which MII or any of its Subsidiaries has issued, or caused to be issued, any Surety Instruments which remain outstanding. The Parties agree that neither MII nor any of its Subsidiaries will have any obligation to renew any Surety Instruments issued on behalf of a member of the B&W Group after the expiration of any such Surety Instruments, provided that nothing in this Section 6.7 shall prevent MII from renewing any Surety Instrument. If B&W is unable to replace any of the Surety Instruments within ten days after a Change of Control of B&W, B&W will cause letters of credit to be issued to MII (or, as applicable, the Subsidiaries of MII that are directly or contingently liable with respect thereto) by one or more financial institutions reasonably acceptable to MII to provide, in each case, MII (or, as applicable, its Subsidiaries) with prompt cash reimbursement, in full, in the event of any draw, cash call or other event giving rise to any payment obligation on the part of MII or any of its Subsidiaries with respect to any such Surety Instrument, for so long as such Surety Instruments remain outstanding or in effect. For the avoidance of doubt, it is understood and acknowledged that the performance obligations of the Parties under this Section 6.7 are subject to the limitations on liability set forth in Section 3.12.

Surety Instruments. (a) On or after the Distribution Date, if any letters of credit, financial or surety bonds issued by third parties or other similar financial instruments issued by third parties (collectively, “Scheduled RemainCo Surety Instruments”) Obligations for the account of MII or any of its Subsidiaries issued on behalf of or for the benefit of the B&W SpinCo Business are outstanding, B&W SpinCo shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to replace such the Scheduled RemainCo Surety Instruments Obligations for the SpinCo Business as promptly as practicable with Surety Instruments that (x) are issued for B&WSpinCo’s own account or the account of any of its Subsidiaries (or any combination thereof), (y) are acceptable to the beneficiary or beneficiaries thereof and (z) neither impose any Liabilities, directly or indirectly, on MII RemainCo or any of its Subsidiaries nor encumber or otherwise restrict, directly or indirectly, any Assets of MII RemainCo or any of its Subsidiaries. Notwithstanding the provisions of the immediately preceding sentence, if, after using commercially reasonable efforts, B&W and its Subsidiaries are unable to obtain access to a third-party surety arrangement immediately after the Distribution Time, then MII shall use commercially reasonable efforts to permit B&W and its Subsidiaries to maintain access to the existing surety arrangements to which MII is a party and pursuant to which Surety Instruments for the benefit of the B&W Business are outstanding as of the Distribution Time, for a period of time that does not extend beyond 720 days following the Distribution Date, to the extent permitted pursuant to MII’s credit facilities, as the same may hereafter be amended or replaced; provided, however, that (for so long as MII may have any obligation under or in respect of any additional Surety Instruments that may be issued in accordance with this sentence pursuant to the existing surety arrangements described in the foregoing provisions of this sentence, as they may hereafter be amended or otherwise modified from time to time) in no event shall (i) B&W and its Subsidiaries utilize pursuant to this sentence, at any point in time, aggregate bonding capacity under such existing surety arrangements in excess of $200 million (with any Surety Instruments outstanding as of the Distribution Date not being taken into account to determine if this limit has been reached), and (ii) any Surety Instrument issued pursuant to this sentence have a term that exceeds five years; provided, further, that (i) the ability of B&W and its Subsidiaries to access such existing surety arrangements shall terminate immediately upon B&W ceasing to maintain a corporate rating of BB- or higher by S&P (or its equivalent under any successor rating categories of S&P) and Ba3 or higher by Xxxxx’x (or its equivalent under any successor rating categories of Xxxxx’x) and (ii) neither B&W nor any of its Subsidiaries shall access any such existing surety arrangements during any period following B&W’s receipt of notice from, or a public announcement by, either S&P or Xxxxx’x that such rating agency is considering a possible ratings change below the level specified in the immediately preceding clause (i) unless and until such rating agency has advised B&W in writing that such ratings agency is no longer considering such a ratings change. From and after the Distribution Time: B&W SpinCo shall (i) directly pay to the Person issuing any Surety Instrument pursuant to the immediately preceding sentence any surety fees or other fees or costs charged with respect to such Surety Instruments; (ii) promptly pay to MII upon written request amounts equal to any out-of-pocket or other expenses incurred by MII or any of its Subsidiaries (including any expenses recorded pursuant to the provisions of the Financial Accounting Standards Board’s Interpretation No. 45, Guarantor’s Accounting and Disclosure Requirements for Guarantees) arising from or relating to any Surety Instruments described in the second sentence of this Section 6.7 or any actions taken by MII in accordance with the provisions of this Section 6.7; and (iii) indemnify and hold harmless MII RemainCo and each of its Subsidiaries from and against any other Losses arising from or relating to any Surety Instruments described in relating to the foregoing provisions RemainCo Surety Obligations for the SpinCo Business. Without the prior written consent of this Section 6.7RemainCo, as set forth in Section 3.3. B&W SpinCo shall not, and shall not permit any of its Subsidiaries to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third partyThird Party, any loan, lease, Contract or other obligation in connection with which MII RemainCo or any of its Subsidiaries has issued, or caused to be issued, any Surety Instruments which remain outstandingrelating to any RemainCo Surety Obligations for the SpinCo Business. The Parties agree that neither MII RemainCo nor any of its Subsidiaries will have any obligation to renew any Surety Instruments issued on behalf of a member of relating to the B&W Group RemainCo Surety Obligations for the SpinCo Business, after the expiration of any such Surety Instruments, provided that nothing in this Section 6.7 6.7(a) shall prevent MII RemainCo or any of its Subsidiaries from renewing any Surety Instrument. If B&W is SpinCo theretofore has been unable to replace any of the Scheduled RemainCo Surety Instruments Obligations for the SpinCo Business, then, within ten days after a Change of Control of B&WSpinCo (or, B&W if later, on the 24 month anniversary of the Distribution Time if, within ten days after such Change of Control, SpinCo provides to RemainCo a valid, binding and enforceable guarantee, in favor of RemainCo, of SpinCo’s obligations under this Section 6.7(a) from the ultimate parent entity with control over SpinCo (provided that the Credit Quality of such ultimate parent entity, after providing the guarantee contemplated by this parenthetical, is, in the written opinion of a nationally recognized investment banking firm or a nationally recognized credit rating agency reasonably acceptable to RemainCo, not lower than the Credit Quality of SpinCo immediately prior to such Change of Control)), SpinCo will cause letters of credit Applicable Security Instruments for Surety Obligations to be issued to MII RemainCo (or, as applicable, the Subsidiaries of MII RemainCo that are directly or contingently liable with respect thereto) by one or more financial institutions reasonably acceptable to MII to provide, in each case, MII RemainCo (or, as applicable, its Subsidiaries) with prompt cash reimbursement, in full, in the event of any draw, cash call or other event giving rise to any payment obligation on the part of MII RemainCo or any of its Subsidiaries with respect to any such Scheduled RemainCo Surety InstrumentObligations for the SpinCo Business. If, as contemplated by clause (ii)(B) of the definition of “Applicable Security Instruments for so long Surety Obligations,” any Applicable Security Instrument for Surety Obligations issued as contemplated by the immediately preceding sentence (or by this sentence) includes one or more indemnity bonds with an expiration date before the Surety Obligation End Date for the applicable Scheduled RemainCo Surety Obligation for the SpinCo Business and the issuer of such indemnity bond fails for any reason to grant any annual rolling one-year extension through the Surety Instruments Obligation End Date, then SpinCo shall promptly, and before the expiration of any such indemnity bonds, cause to be issued in the place of each such indemnity bonds (i) new irrevocable standby letters of credit issued by one or more financial institutions reasonably acceptable to RemainCo, with the amounts of such letters of credit being, in the aggregate, not less than the amount of the indemnity bonds being replaced and with such letters of credit providing that they will remain outstanding in effect through the applicable Surety Obligation End Date (or, if they will not remain in effect through such date, that they may be drawn in full by the beneficiaries thereof if such letters of credit are not, prior to 15 days before such expiration or in effecttermination, replaced with other letters of credit meeting the qualifications of this clause (i) or extended) or (ii) indemnity bonds issued by one or more financial institutions or other issuers, and on terms and conditions, reasonably acceptable to RemainCo with (A) the expiration date of such bonds being no earlier than the earlier of (1) three years after the date such bonds are issued and, if the expiration date is before the Surety Obligation End Date, providing for annual one-year extensions and (2) the Surety Obligation End Date and (B) the amounts of such bonds being not less than the amount of the indemnity bonds being replaced. For the avoidance of doubt, it is understood and acknowledged that the performance obligations of the Parties under this Section 6.7 6.7(a) are subject to the limitations on liability set forth in Section 3.123.13.

Surety Instruments. On or after the Distribution Date, if any letters of credit, financial or surety bonds issued by third parties or other similar financial instruments issued by third parties (collectively, “Surety Instruments”) for the account of MII Fiesta Restaurant Group or any of its Subsidiaries issued on behalf of or for the benefit of the B&W CRG Business are outstanding, B&W or if any Surety Instruments for the account of CRG or any of its Subsidiaries issued on behalf of or for the benefit of the Fiesta Business are outstanding, the party benefiting from the Surety Instruments shall, and shall cause its Subsidiaries to, use their respective commercially reasonable efforts to replace such Surety Instruments as promptly as practicable with Surety Instruments that (x) are issued for B&W’s its own account or the account of any of its Subsidiaries (or any combination thereof), (y) are acceptable to the beneficiary or beneficiaries thereof and (z) neither impose any Liabilities, directly or indirectly, on MII the party not benefiting therefrom or any of its Subsidiaries nor encumber or otherwise restrict, directly or indirectly, any Assets of MII such party or any of its Subsidiaries. Notwithstanding the provisions of the immediately preceding sentence, if, after using commercially reasonable efforts, B&W and its Subsidiaries are unable to obtain access to a third-party surety arrangement immediately after the Distribution Time, then MII shall use commercially reasonable efforts to permit B&W and its Subsidiaries to maintain access to the existing surety arrangements to which MII is a party and pursuant to which Surety Instruments for the benefit of the B&W Business are outstanding as of the Distribution Time, for a period of time that does not extend beyond 720 days following Following the Distribution Date, to the extent permitted pursuant to MII’s credit facilities, as the same may hereafter be amended or replaced; provided, however, that (for so long as MII may have any obligation under or in respect of any additional Surety Instruments that may be issued in accordance with this sentence pursuant to the existing surety arrangements described in the foregoing provisions of this sentence, as they may hereafter be amended or otherwise modified from time to time) in no event shall (i) B&W and its Subsidiaries utilize pursuant to this sentence, at any point in time, aggregate bonding capacity under such existing surety arrangements in excess of $200 million (with any Surety Instruments outstanding as of the Distribution Date not being taken into account to determine if this limit has been reached), and (ii) any Surety Instrument issued pursuant to this sentence have a term that exceeds five years; provided, further, that (i) the ability of B&W and its Subsidiaries to access such existing surety arrangements shall terminate immediately upon B&W ceasing to maintain a corporate rating of BB- or higher by S&P (or its equivalent under any successor rating categories of S&P) and Ba3 or higher by Xxxxx’x (or its equivalent under any successor rating categories of Xxxxx’x) and (ii) neither B&W nor any of its Subsidiaries shall access party benefiting from any such existing surety arrangements during any period following B&W’s receipt of notice from, or a public announcement by, either S&P or Xxxxx’x that such rating agency is considering a possible ratings change below the level specified in the immediately preceding clause (i) unless and until such rating agency has advised B&W in writing that such ratings agency is no longer considering such a ratings change. From and after the Distribution Time: B&W shall (i) directly pay to the Person issuing any Surety Instrument pursuant to the immediately preceding sentence any surety fees or other fees or costs charged with respect to such Surety Instruments; (ii) promptly pay to MII upon written request amounts equal to any out-of-pocket or other expenses incurred by MII or any of its Subsidiaries (including any expenses recorded pursuant to the provisions of the Financial Accounting Standards Board’s Interpretation No. 45, Guarantor’s Accounting and Disclosure Requirements for Guarantees) arising from or relating to any unreplaced Surety Instruments described in the second sentence of this Section 6.7 or any actions taken by MII in accordance with the provisions of this Section 6.7; and (iii) shall indemnify and hold harmless MII and each of its Subsidiaries from and against the other party’s Group for any other Losses arising from or relating to any such unreplaced Surety Instruments described in the foregoing provisions of this Section 6.7, as set forth in Section 3.3. B&W 3.3 or 3.4, as applicable, and (ii) the party benefiting from such Surety Instruments shall not, and shall not permit any of its Subsidiaries to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, Contract or other obligation in connection with which MII the other party or any of its Subsidiaries has issued, or caused to be issued, any Surety Instruments which remain outstanding. The Parties parties hereto agree that neither MII party nor any of its respective Subsidiaries will have any obligation to renew any Surety Instruments issued on behalf of a member of the B&W other party’s Group after the expiration of any such Surety Instruments, provided that nothing in this Section 6.7 shall prevent MII a party from renewing any Surety Instrument. If B&W is unable to replace any of the Surety Instruments within ten days after a Change of Control of B&W, B&W will cause letters of credit to be issued to MII (or, as applicable, the Subsidiaries of MII that are directly or contingently liable with respect thereto) by one or more financial institutions reasonably acceptable to MII to provide, in each case, MII (or, as applicable, its Subsidiaries) with prompt cash reimbursement, in full, in the event of any draw, cash call or other event giving rise to any payment obligation on the part of MII or any of its Subsidiaries with respect to any such Surety Instrument, for so long as such Surety Instruments remain outstanding or in effect. For the avoidance of doubt, it is understood and acknowledged that the performance obligations of the Parties under this Section 6.7 are subject to the limitations on liability set forth in Section 3.12.

Surety Instruments. On or after the Distribution Date, if any letters of credit, customs bonds, financial or surety bonds issued by third parties or other similar financial instruments issued by third parties Parties (collectively, “Surety Instruments”) for the account of MII Noble or any other member of its Subsidiaries the Noble Group issued on behalf of or for the benefit of the B&W Paragon Business are remain outstanding, B&W or any Surety Instruments for the account of Paragon or any other member of the Paragon Group issued on behalf of or for the benefit of the Noble Business remain outstanding, the party benefiting from the Surety Instruments shall, and shall cause its Subsidiaries to, use commercially reasonable their respective best efforts to replace such Surety Instruments as promptly as practicable with Surety Instruments that (x) are issued for B&W’s its own account or the account of any of its Subsidiaries (or any combination thereof), (y) are acceptable to the beneficiary or beneficiaries thereof and (z) neither impose any Liabilities, directly or indirectly, on MII or any of its Subsidiaries nor encumber or otherwise restrict, directly or indirectly, any Assets of MII or any of its Subsidiaries. Notwithstanding the provisions of the immediately preceding sentence, if, after using commercially reasonable efforts, B&W and its Subsidiaries are unable to obtain access to a third-party surety arrangement immediately after the Distribution Time, then MII shall use commercially reasonable efforts to permit B&W and its Subsidiaries to maintain access to the existing surety arrangements to which MII is a party and pursuant to which Surety Instruments for the benefit of the B&W Business are outstanding as of the Distribution Time, for a period of time that does not extend beyond 720 days following Following the Distribution Date, to the extent permitted pursuant to MII’s credit facilities, as the same may hereafter be amended or replaced; provided, however, that (for so long as MII may have any obligation under or in respect of any additional Surety Instruments that may be issued in accordance with this sentence pursuant to the existing surety arrangements described in the foregoing provisions of this sentence, as they may hereafter be amended or otherwise modified from time to time) in no event shall (i) B&W and its Subsidiaries utilize pursuant to this sentence, at any point in time, aggregate bonding capacity under such existing surety arrangements in excess of $200 million (with any Surety Instruments outstanding as of the Distribution Date not being taken into account to determine if this limit has been reached), and (ii) any Surety Instrument issued pursuant to this sentence have a term that exceeds five years; provided, further, that (i) the ability of B&W and its Subsidiaries to access such existing surety arrangements shall terminate immediately upon B&W ceasing to maintain a corporate rating of BB- or higher by S&P (or its equivalent under any successor rating categories of S&P) and Ba3 or higher by Xxxxx’x (or its equivalent under any successor rating categories of Xxxxx’x) and (ii) neither B&W nor any of its Subsidiaries shall access any such existing surety arrangements during any period following B&W’s receipt of notice from, or a public announcement by, either S&P or Xxxxx’x that such rating agency is considering a possible ratings change below the level specified in the immediately preceding clause (i) unless and until such rating agency has advised B&W in writing that such ratings agency is no longer considering such a ratings change. From and after the Distribution Time: B&W shall (i) directly pay to the Person issuing any Surety Instrument pursuant to the immediately preceding sentence any surety fees or other fees or costs charged with respect to party benefiting from such Surety Instruments; (ii) promptly pay to MII upon written request amounts equal to any out-of-pocket or other expenses incurred by MII or any of its Subsidiaries (including any expenses recorded pursuant to the provisions of the Financial Accounting Standards Board’s Interpretation No. 45, Guarantor’s Accounting and Disclosure Requirements for Guarantees) arising from or relating to any Surety Instruments described in the second sentence of this Section 6.7 or any actions taken by MII in accordance with the provisions of this Section 6.7; and (iii) shall indemnify and hold harmless MII and each of its Subsidiaries from and against the other party’s group for any other Losses arising from or relating to any such unreplaced Surety Instruments described in the foregoing provisions of this Section 6.7, as set forth in Section 3.3. B&W 3.3 or 3.4, as applicable and (ii) the party benefiting from such Surety Instruments shall not, and shall not permit any members of its Subsidiaries Group to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third partyParty, any loan, lease, Contract contract or other obligation in connection with which MII Noble or any other member of its Subsidiaries the Noble Group has issued, or caused to be issued, any Surety Instruments which remain outstanding. The Parties agree that neither MII party nor any members of its Subsidiaries their respective Groups will have any obligation to renew any Surety Instruments issued on behalf of a member of the B&W Group other party’s group after the expiration of any such Surety Instruments, provided that nothing in this Section 6.7 6.8 shall prevent MII a party from renewing any Surety Instrument. If B&W is unable to replace any of the Surety Instruments within ten days after a Change of Control of B&W, B&W will cause letters of credit to be issued to MII (or, as applicable, the Subsidiaries of MII that are directly or contingently liable with respect thereto) by one or more financial institutions reasonably acceptable to MII to provide, in each case, MII (or, as applicable, its Subsidiaries) with prompt cash reimbursement, in full, in the event of any draw, cash call or other event giving rise to any payment obligation on the part of MII or any of its Subsidiaries with respect to any such Surety Instrument, for so long as such Surety Instruments remain outstanding or in effect. For the avoidance of doubt, it is understood and acknowledged that the performance obligations of the Parties under this Section 6.7 are subject to the limitations on liability set forth in Section 3.12.

Surety Instruments. On or after the Distribution Date, if any letters of credit, financial or surety bonds issued by third parties or other similar financial instruments issued by third parties (collectively, “Surety Instruments”) for the account of MII CHK or any of its Subsidiaries issued on behalf of or for the benefit of the B&W SSE Business are outstanding, B&W then (i) SSE shall, and shall cause its Subsidiaries to, use their commercially reasonable efforts to replace such Surety Instruments as promptly as practicable with Surety Instruments that (x) are issued for B&WSSE’s own account or the account of any of its Subsidiaries (or any combination thereof), (y) are acceptable to the beneficiary or beneficiaries thereof and (z) neither impose any Liabilities, directly or indirectly, on MII CHK or any of its Subsidiaries nor encumber or otherwise restrict, directly or indirectly, any Assets of MII or any of its Subsidiaries. Notwithstanding the provisions of the immediately preceding sentence, if, after using commercially reasonable efforts, B&W and its Subsidiaries are unable to obtain access to a third-party surety arrangement immediately after the Distribution Time, then MII shall use commercially reasonable efforts to permit B&W and its Subsidiaries to maintain access to the existing surety arrangements to which MII is a party and pursuant to which Surety Instruments for the benefit of the B&W Business are outstanding as of the Distribution Time, for a period of time that does not extend beyond 720 days following the Distribution Date, to the extent permitted pursuant to MII’s credit facilities, as the same may hereafter be amended or replaced; provided, however, that (for so long as MII may have any obligation under or in respect of any additional Surety Instruments that may be issued in accordance with this sentence pursuant to the existing surety arrangements described in the foregoing provisions of this sentence, as they may hereafter be amended or otherwise modified from time to time) in no event shall (i) B&W and its Subsidiaries utilize pursuant to this sentence, at any point in time, aggregate bonding capacity under such existing surety arrangements in excess of $200 million (with any Surety Instruments outstanding as of the Distribution Date not being taken into account to determine if this limit has been reached), and (ii) any Surety Instrument issued pursuant to this sentence have a term that exceeds five years; provided, further, that (i) the ability of B&W and its Subsidiaries to access such existing surety arrangements shall terminate immediately upon B&W ceasing to maintain a corporate rating of BB- or higher by S&P (or its equivalent under any successor rating categories of S&P) and Ba3 or higher by Xxxxx’x (or its equivalent under any successor rating categories of Xxxxx’x) and (ii) neither B&W nor any of its Subsidiaries shall access any such existing surety arrangements during any period following B&W’s receipt of notice from, or a public announcement by, either S&P or Xxxxx’x that such rating agency is considering a possible ratings change below the level specified in the immediately preceding clause (i) unless and until such rating agency has advised B&W in writing that such ratings agency is no longer considering such a ratings change. From and after the Distribution Time: B&W shall (i) directly pay to the Person issuing any Surety Instrument pursuant to the immediately preceding sentence any surety fees or other fees or costs charged with respect to such Surety Instruments; (ii) promptly pay to MII upon written request amounts equal to any out-of-pocket or other expenses incurred by MII CHK or any of its Subsidiaries or (including any expenses recorded pursuant ii) if Chesapeake consents to the provisions maintaining such Surety Instrument, SSE shall reimburse CHK for that portion of the Financial Accounting Standards Board’s Interpretation Nopremium for such Surety Instrument reasonably allocated to SSE by CHK. 45, Guarantor’s Accounting SSE and Disclosure Requirements for Guarantees) arising from or relating to any Surety Instruments described in the second sentence of this Section 6.7 or any actions taken by MII in accordance with the provisions of this Section 6.7; and (iii) its Subsidiaries shall indemnify and hold harmless MII CHK and each of its Subsidiaries from and against any other Losses attributable to SSE arising from or relating to any Surety Instruments described in the foregoing provisions of this Section 6.7, as set forth 6.7 in accordance with Section 3.3. B&W SSE shall not, and shall not permit any of its Subsidiaries to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, Contract or other obligation in connection with which MII CHK or any of its Subsidiaries has issued, or caused to be issued, any Surety Instruments which remain outstanding. The Parties agree that neither MII CHK nor any of its Subsidiaries will have any obligation to renew any Surety Instruments issued on behalf of a member of the B&W SSE Group after the expiration of any such Surety Instruments, provided that nothing in this Section 6.7 shall prevent MII CHK from renewing any Surety Instrument. If B&W SSE is unable to replace any of the Surety Instruments within ten days after a Change of Control of B&WSSE, B&W SSE will upon request from CHK, cause letters of credit to be issued to MII CHK (or, as applicable, the Subsidiaries of MII CHK that are directly or contingently liable with respect thereto) by one or more financial institutions reasonably acceptable to MII CHK to provide, in each case, MII CHK (or, as applicable, its Subsidiaries) with prompt cash reimbursement, in full, in the event of any draw, cash call or other event giving rise to any payment obligation on the part of MII CHK or any of its Subsidiaries with respect to any such Surety Instrument, for so long as such Surety Instruments remain outstanding or in effect. For the avoidance of doubt, it is understood and acknowledged that the performance obligations of the Parties under this Section 6.7 are subject to the limitations on liability set forth in Section 3.123.13.

Surety Instruments. On or after the Distribution Date, if any letters of credit, financial or surety bonds issued by third parties or other similar financial instruments issued by third parties (collectively, “Surety Instruments”) for the account of MII Seahawk or any of its Subsidiaries issued on behalf of or for the benefit of the B&W Pride Business are outstanding, B&W or if any Surety Instruments for the account of Pride or any of its Subsidiaries issued on behalf of or for the benefit of the Seahawk Business are outstanding, the party benefiting from the Surety Instruments shall, and shall cause its Subsidiaries to, use their respective commercially reasonable efforts to replace such Surety Instruments as promptly as practicable with Surety Instruments that (x) are issued for B&W’s its own account or the account of any of its Subsidiaries (or any combination thereof), (y) are acceptable to the beneficiary or beneficiaries thereof and (z) neither impose any Liabilities, directly or indirectly, on MII the party not benefiting therefrom or any of its Subsidiaries nor encumber or otherwise restrict, directly or indirectly, any Assets of MII such party or any of its Subsidiaries. Notwithstanding the provisions of the immediately preceding sentence, if, after using commercially reasonable efforts, B&W and its Subsidiaries are unable to obtain access to a third-party surety arrangement immediately after the Distribution Time, then MII shall use commercially reasonable efforts to permit B&W and its Subsidiaries to maintain access to the existing surety arrangements to which MII is a party and pursuant to which Surety Instruments for the benefit of the B&W Business are outstanding as of the Distribution Time, for a period of time that does not extend beyond 720 days following Following the Distribution Date, to the extent permitted pursuant to MII’s credit facilities, as the same may hereafter be amended or replaced; provided, however, that (for so long as MII may have any obligation under or in respect of any additional Surety Instruments that may be issued in accordance with this sentence pursuant to the existing surety arrangements described in the foregoing provisions of this sentence, as they may hereafter be amended or otherwise modified from time to time) in no event shall (i) B&W and its Subsidiaries utilize pursuant to this sentence, at any point in time, aggregate bonding capacity under such existing surety arrangements in excess of $200 million (with any Surety Instruments outstanding as of the Distribution Date not being taken into account to determine if this limit has been reached), and (ii) any Surety Instrument issued pursuant to this sentence have a term that exceeds five years; provided, further, that (i) the ability of B&W and its Subsidiaries to access such existing surety arrangements shall terminate immediately upon B&W ceasing to maintain a corporate rating of BB- or higher by S&P (or its equivalent under any successor rating categories of S&P) and Ba3 or higher by Xxxxx’x (or its equivalent under any successor rating categories of Xxxxx’x) and (ii) neither B&W nor any of its Subsidiaries shall access party benefiting from any such existing surety arrangements during any period following B&W’s receipt of notice from, or a public announcement by, either S&P or Xxxxx’x that such rating agency is considering a possible ratings change below the level specified in the immediately preceding clause (i) unless and until such rating agency has advised B&W in writing that such ratings agency is no longer considering such a ratings change. From and after the Distribution Time: B&W shall (i) directly pay to the Person issuing any Surety Instrument pursuant to the immediately preceding sentence any surety fees or other fees or costs charged with respect to such Surety Instruments; (ii) promptly pay to MII upon written request amounts equal to any out-of-pocket or other expenses incurred by MII or any of its Subsidiaries (including any expenses recorded pursuant to the provisions of the Financial Accounting Standards Board’s Interpretation No. 45, Guarantor’s Accounting and Disclosure Requirements for Guarantees) arising from or relating to any unreplaced Surety Instruments described in the second sentence of this Section 6.7 or any actions taken by MII in accordance with the provisions of this Section 6.7; and (iii) shall indemnify and hold harmless MII and each of its Subsidiaries from and against the other party’s Group for any other Losses arising from or relating to any such unreplaced Surety Instruments described in the foregoing provisions of this Section 6.7, as set forth in Section 3.3. B&W 3.3 or 3.4, as applicable, and shall pay to the other party the fees set forth on Schedule 6.7 with respect to such Surety Instruments at the intervals specified therein, and (ii) the party benefiting from such Surety Instruments shall not, and shall not permit any of its Subsidiaries to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, Contract or other obligation in connection with which MII the other party or any of its Subsidiaries has issued, or caused to be issued, any Surety Instruments which remain outstanding. The Parties parties hereto agree that neither MII party nor any of its respective Subsidiaries will have any obligation to renew any Surety Instruments issued on behalf of a member of the B&W other party’s Group after the expiration of any such Surety Instruments, provided that nothing in this Section 6.7 shall prevent MII a party from renewing any Surety Instrument. If B&W is unable This Section 6.7 shall not apply to replace any of the Surety Instruments within ten days after a Change of Control of B&W, B&W will cause letters of credit to be issued to MII (or, as applicable, the Subsidiaries of MII that are directly or contingently liable with respect thereto) by one or more financial institutions reasonably acceptable to MII to provide, in each case, MII (or, as applicable, its Subsidiaries) with prompt cash reimbursement, in full, contemplated in the event of any draw, cash call or other event giving rise to any payment obligation on the part of MII or any of its Subsidiaries with respect to any such Surety Instrument, for so long as such Surety Instruments remain outstanding or in effect. For the avoidance of doubt, it is understood and acknowledged that the performance obligations of the Parties under this Section 6.7 are subject to the limitations on liability set forth in Section 3.12Tax Support Agreement.

Surety Instruments. On or after the Distribution Date, if any letters of credit, financial or surety bonds issued by third parties or other similar financial instruments issued by third parties (collectively, “Surety Instruments”) for the account of MII Seahawk or any of its Subsidiaries issued on behalf of or for the benefit of the B&W Pride Business are outstanding, B&W or if any Surety Instruments for the account of Pride or any of its Subsidiaries issued on behalf of or for the benefit of the Seahawk Business are outstanding, the party benefiting from the Surety Instruments shall, and shall cause its Subsidiaries to, use their respective commercially reasonable efforts to replace such Surety Instruments as promptly as practicable with Surety Instruments that (x) are issued for B&W’s its own account or the account of any of its Subsidiaries (or any combination thereof), (y) are acceptable to the beneficiary or beneficiaries thereof and (z) neither impose any Liabilities, directly or indirectly, on MII the party not benefiting therefrom or any of its Subsidiaries nor encumber or otherwise restrict, directly or indirectly, any Assets of MII such party or any of its Subsidiaries. Notwithstanding the provisions of the immediately preceding sentence, if, after using commercially reasonable efforts, B&W and its Subsidiaries are unable to obtain access to a third-party surety arrangement immediately after the Distribution Time, then MII shall use commercially reasonable efforts to permit B&W and its Subsidiaries to maintain access to the existing surety arrangements to which MII is a party and pursuant to which Surety Instruments for the benefit of the B&W Business are outstanding as of the Distribution Time, for a period of time that does not extend beyond 720 days following Following the Distribution Date, to the extent permitted pursuant to MII’s credit facilities, as the same may hereafter be amended or replaced; provided, however, that (for so long as MII may have any obligation under or in respect of any additional Surety Instruments that may be issued in accordance with this sentence pursuant to the existing surety arrangements described in the foregoing provisions of this sentence, as they may hereafter be amended or otherwise modified from time to time) in no event shall (i) B&W and its Subsidiaries utilize pursuant to this sentence, at any point in time, aggregate bonding capacity under such existing surety arrangements in excess of $200 million (with any Surety Instruments outstanding as of the Distribution Date not being taken into account to determine if this limit has been reached), and (ii) any Surety Instrument issued pursuant to this sentence have a term that exceeds five years; provided, further, that (i) the ability of B&W and its Subsidiaries to access such existing surety arrangements shall terminate immediately upon B&W ceasing to maintain a corporate rating of BB- or higher by S&P (or its equivalent under any successor rating categories of S&P) and Ba3 or higher by Xxxxx’x (or its equivalent under any successor rating categories of Xxxxx’x) and (ii) neither B&W nor any of its Subsidiaries shall access party benefiting from any such existing surety arrangements during any period following B&W’s receipt of notice from, or a public announcement by, either S&P or Xxxxx’x that such rating agency is considering a possible ratings change below the level specified in the immediately preceding clause (i) unless and until such rating agency has advised B&W in writing that such ratings agency is no longer considering such a ratings change. From and after the Distribution Time: B&W shall (i) directly pay to the Person issuing any Surety Instrument pursuant to the immediately preceding sentence any surety fees or other fees or costs charged with respect to such Surety Instruments; (ii) promptly pay to MII upon written request amounts equal to any out-of-pocket or other expenses incurred by MII or any of its Subsidiaries (including any expenses recorded pursuant to the provisions of the Financial Accounting Standards Board’s Interpretation No. 45, Guarantor’s Accounting and Disclosure Requirements for Guarantees) arising from or relating to any unreplaced Surety Instruments described in the second sentence of this Section 6.7 or any actions taken by MII in accordance with the provisions of this Section 6.7; and (iii) shall indemnify and hold harmless MII and each of its Subsidiaries from and against the other party’s Group for any other Losses arising from or relating to any such unreplaced Surety Instruments described in the foregoing provisions of this Section 6.7, as set forth in Section 3.3. B&W 3.3 or 3.4, as applicable, and shall pay to the other party the fees set forth on Schedule 6.7 with respect to such Surety Instruments at the intervals specified therein, and (ii) the party benefiting from such Surety Instruments shall not, and shall not permit any of its Subsidiaries to, enter into, renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, lease, Contract or other obligation in connection with which MII the other party or any of its Subsidiaries has issued, or caused to be issued, any Surety Instruments which remain outstanding. The Parties parties hereto agree that neither MII party nor any of its respective Subsidiaries will have any obligation to renew any Surety Instruments issued on behalf of a member of the B&W other party’s Group after the expiration of any such Surety Instruments, provided that nothing in this Section 6.7 shall prevent MII a party from renewing any Surety Instrument. If B&W is unable to replace any of the Surety Instruments within ten days after a Change of Control of B&W, B&W will cause letters of credit to be issued to MII (or, as applicable, the Subsidiaries of MII that are directly or contingently liable with respect thereto) by one or more financial institutions reasonably acceptable to MII to provide, in each case, MII (or, as applicable, its Subsidiaries) with prompt cash reimbursement, in full, in the event of any draw, cash call or other event giving rise to any payment obligation on the part of MII or any of its Subsidiaries with respect to any such Surety Instrument, for so long as such Surety Instruments remain outstanding or in effect. For the avoidance of doubt, it is understood and acknowledged that the performance obligations of the Parties under this Section 6.7 are subject to the limitations on liability set forth in Section 3.12.